Taylor v. Jackson

• Decision Date: 16 February 1954
• Citation: 123 Cal.App.2d 199,266 P.2d 605
• Court: California Court of Appeals Court of Appeals
• Parties: TAYLOR et al. v. JACKSON. Civ. 15602.

Page 605

266 P.2d 605

123 Cal.App.2d 199

TAYLOR et al. v. JACKSON.

Civ. 15602.

District Court of Appeal, First District, Division 2, California.

Feb. 16, 1954.

James A. Johnstone, Emeryville, and William B. Mead, Oakland, for appellants.

Theodore Tamba, San Francisco, for respondent.

NOURSE, Presiding Justice.

MacArthur Taylor, a minor, through his mother, Clara Taylor, as his guardian ad litem, brought suit for injuries suffered when he came in contact with defendant's automobile. Clara Taylor joined in said suit her cause of action for medical and hospital expenses incurred in the treatment of the injuries of her son. The jury rendered a verdict for defendant and plaintiffs appeal.

The accident happened in or near the intersection of West street and 37th street in Oakland. The streets intersect at right angles, West street running north and south, 37th street east and west. West street has one traffic lane for each direction. Defendant was proceeding southward on West street in the direction of and across 37th street. In front of him his lane was free of traffic, but in the northbound lane was a solid line of cars stopped because of a traffic light at the next cross-street to the north of 37th street, MacArthur Boulevard. This line extended bumper to bumper from MacArthur Boulevard south far across 37th street. The minor plaintiff, then 5 years old, tried to cross West street from east to west, running from between the stopped cars into the southward bound lane. There is a conflict in the evidence as to the exact place where the child tried to cross, whether in the southerly unmarked pedestrian crosswalk across West street at the 37th street intersection or somewhat to the south of it, defendant and his wife, who was with him in his car, testifying that the place of impact was to the south of the crosswalk, two eyewitnesses to the effect that it was in the southerly part of said crosswalk.

There was further strong evidence that the child came running from between two stopped cars and took only a few running steps, probably not more than two, after he emerged from between these cars until he was hit by the left forefender of defendant's automobile. Defendant testified that he looked left and right when he came to the southern crosswalk of the intersection but did not see the child; he was going 15 to 20 miles an hour; he got only a sudden glimpse of the child when he saw his head and shoulders over the top of his left fender. He immediately braked, approximately at the same time as the impact occurred. The skid marks were measured to be 23 feet. The street was dry. It was daylight with clear visibility.

Appellants' main contention is that the evidence is insufficient, as a matter of law, to support a judgment for respondent, because it shows as a matter of law that defendant violated section 560 subd. (a) of the Vehicle Code which requires the driver of a vehicle to yield the right of way to a pedestrian crossing within any marked or unmarked crosswalk at an intersection, the violation of which section constitutes negligence per se. Nicholas v. Leslie, 7 Cal.App.2d 590, 594, 46 P.2d 761; Fischer v. Keen, 43 Cal.App.2d 244, 249, 110 P.2d 693. That violation of section 560(a) by failure to yield the right of way is considered negligence per se is true and the rule of said section is in some cases even extended to pedestrians crossing just without the boundary of a crosswalk. Nicholas v. Leslie, supra, 7 Cal.App.2d at page 595, 46 P.2d 761; Woods v. Eitze, 94 Cal.App.2d 910, 917, 212 P.2d 12. 'However, though violation of a statute imposing a standard of care may be negligence as a matter of law, circumstances still may be shown in excuse or in justification of such conduct.' Driver v. Norman, 106 Cal.App.2d 725, 727, 236 P.2d 6, 8. In that case appellant, driver, hit a pedestrian crossing within an unmarked crosswalk. The driver, who closely followed another car, saw the pedestrian only when the first car suddenly swerved to avoid striking her. Appellant also swerved but nevertheless hit her. The court further said: 'Prima facie, appellant herein was negligent in violating Vehicle Code section 560 but from the evidence introduced it was still a question for the trier of fact as to whether his conduct in failing to yield the right of way was not that of any ordinarily prudent person. (Citation.)

'Under all the circumstances the jury could properly have determined that appellant was not negligent in failing to yield the right of way since...